Exports
under GST are considered as zero rated i.e. no tax is payable on export of
goods or services. A person making zero rated supply is eligible under GST to
claim for refund of unutilized input tax credit. The refund can be claimed by
an exporter in two ways as stated in section 16 of IGST act, 2017:

Whenever
a new tax regime replaces an old tax regime there are numerous changes which a
taxpayer faces and there are lot of
legal challenges in the transition from old regime to new regime. For the
smooth transition of the new tax regime it is quite common to introduce the
transitional provisions under the new tax law.

Refunds
are the important part of any tax legislation. Refund is a drawback of the
excess taxes paid to the Government subject to the conditions laid down in any
law. Article 265 of our constitution provides a base behind legislation of
refund provisions under any tax law, which provides that no tax shall be levied
or collected except with the authority of law.

The Central Government has enhanced the date upto which the submission of Tran-1 and Tran-2 may be allowed to be filed to 31.03.2020
and 30.04.2020 respectively. Earlier this date was 31.12.2019 for Tran-1 and
31.01.2020 for Tran-2 form. This has been done by amendment in CGST Rules, vide
Notification No. 2/2020 Central Tax.

Central Government has implemented certain provisions of Finance Act, 2019 wef 01.01.2020. It is pertinent to mention here that clauses 92 to 112 and section 114 of the finance Act, 2019 which related to amendment in the CGST Act, 2017 are to come into force on such date as the
Central Government may, by notification in the Official Gazette, appoint. Section 103 of the Finance Act, 2019 has already been notified wef 01.09.2019 which related to the amendment in section 54 providing of Sub-section 8A which allowed the Government to disburse the refund of State tax in the manner as may be prescribed.

Rule
86A in the CGST Rules vide notification No 75/2019 has been introduced w.e.f.
26.12.2019 to empower the revenue to impose additional condition/restriction on
use of amount of input tax credit available in the electronic credit ledger. This
rule has given drastic powers to the Department to restrict the credit of any
person in certain cases where there is reason to believe that ITC is availed
fraudulently or is ineligible.

Section 146 of the CGST
Act, 2017 provides that the Government may notify the common elecronic portal
for facilitating the registration, payment of taxes, furnishing of
returns and carrying out other purposes under the said Act. In exercise of the
powers u/s 146 common e-portal (gst.gov.in) and eway bill portal have
been notified and are in operation. It is pertinent to mention here that the
said e-portals are for facilitating the law laid down under the GST laws and
such e-portals cannot override the provisions of law.

Where Competent Authority had detained goods of assessee under
transport and demanded tax as well as penalty and assessee furnished bank
guarantee for tax and penalty imposed and had goods released, Competent
Authority was restrained from invoking bank guarantee till assessee exhausted
statutory remedy

The Kerala High Court in a
very important judgement namely Sameer Mat Industries vs the State of
Kerala has held that Issue
of misclassification and under valuation of goods has to be gone into by
respective Assessing Officers and not by detaining officer.

Government of India has recisended the notification No 74/2017 of CGST which made eway bill compulsory under rule 138 to 138D of CGST Rules. For this purpose notification No 11/2018 CGST has been issued.

The implications of this notification is that eway bill is no more compulsory as Rules 138 to 138D have been made inoperative as they were before the issuance of notification No 74/2017 CGST.

GOVERNMENT OF INDIA

MINISTRY OF FINANCE

DEPARTMENT OF REVENUE

CENTRAL BOARD OF EXCISE AND CUSTOMS

New Delhi: 02.02.2018

Notification No. 11/2018 – Central Tax
G.S.R. 141(E) - In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, hereby rescinds, except as respects things done or omitted to be done before such rescission, the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 74/2017 –Central Tax dated the 29th December, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1601(E), dated the 29th December,
2017.

The official handle of GST
of Government of India has tweeted that the trial phase of generation of eway
bill both for intra-state and inter-state will continue and the date from which
it will be made compulsory will be notified shortly.

Punjab Government has
notified under Rule 138(14)(d) of Punjab GST Rules, 2017 that e-way bill will
not be required to be generated for a period of two months from 1st Feburary,
2018 for intra-state supply of goods provided such goods do not cross the
State boundry during the transit. However, a person may voluntarily generate
e-way bill for intra-state supplies.

E-Way Bill is knocking at the door as the date of its
implementation has been notified 01.02.2018. This article focuses certain main
points in the eway bill mechanism.

What is e-way bill: Section 68 of the
CGST Act, 2017 empowers Government to require any person in charge of a
conveyance carrying any consignment of goods of value exceeding the prescribed
amount to carry with him prescribed documents. In pursuance of provisions of
section 68, Rules 138 to 138D have been legislated prescribing Eway Bill in
form GST EWB 01 along with other documents which a person incharge of
conveyance carrying goods of value exceeding Rs. 50000/-, is required to carry
during the movement of goods.

Who is required to generate Eway bill and when it is required: Eway
bill is required to be generated by the following persons:

1. every registered person who causes the movement of goods of
consignment value exceeding Rs. 50000/-

(i) in relation to a supply; or

(ii) for reasons other than supply; or

(iii) due to inward supply from an unregistered person,

It is pertinent to mention here that Eway Bill has to be generated
before the movement of goods start and is required only by a registered person,
and not by an unregistered person, however, unregistered person may voluntarily
generate eway bill. Eway bill may be generated voluntarily even where the
consignment value does not exceed Rs. 50000/-.

2. where goods are sent by a principal located in one State
to a job worker located in any other State, the e-way bill shall be generated
by the principal irrespective of the value of the consignment.It is to be noted
that limit of Rs. 50000/- in case of intra-state movement of goods for job work
purposes will continue to apply.

3. where handicraft goods are transported from one State to
another by a person who has been exempted from the requirement of obtaining
registration under clauses (i) and (ii) of section 24, the e-way bill shall be
generated by the said person irrespective of the value of the consignment.

Consignment value of Rs. 50000/- as stated above has to be
determined in accordance with Section 15 of CGST Act, which deals with
valuation of supply and the consignment value of Rs. 50000/- shall be counted
by including not only the value of goods but also the GST and Cess if any
charged on it.

Generation of E-way bill: Eway bill has two
parts,Part-A and Part-B. Part-A includes details of invoice/challan/credit note
and the details of receipient and transporter, whereas Part-B only has
information with regard to vehicle no. when you
have prepared invoice relating to your business transaction, but don’t have the
transportation details. You can enter invoice details in Part-A of eway bill
and keep it ready for transportation, once the transportation is ready.

It is worth mentioning here that mere filing
Part-A is not valid for movement of goods on road, except for the movement of
goods from the place of the supplier or the receipient as the case may be to
the place of transporter where the distance between the two is less than 10
KMs.

Who is to file Part-A: Part-A has to be
filed mandatorily by the registered person who causes the movement of goods
whether as consignor or as consignee or as recipient, whether the goods are
transported in his own conveyance or by railways or by air or by vessel.

Part-A can also be filed by the transporter and it is mandatory
for the transporter to file Part-A, if the supplier or receipient fails to do
so and the consignment value exceed Rs. 50000/-

For example if A transporter is carrying 5 different
consignments of five different suppliers and receipients in one vehicle the
value of each consignment is say Rs. 20000/-, in such case the total value of
consignments carried in the vehicle comes to Rs. 100000/- In such case although
it was not mandatory for supplier of receipient of each consignment to
generate eway bill but in such case it is mandatory for the transporter to
generate eway bill by filing both Part-A and Part-B.

Part-A can also be filed by an unregistered person voluntarily,
however, it has been stated in Explanation 2 of Rule 138(3) that if goods are
supplied by an unregistered person to a registered recipient and recipient is
known at the time of commencement of movement of goods, then the movement shall
be said to be caused by such registered receipient.

In other words meaning thereby if supply is by an unregistered
person to a registered person, then it is mandatory for the registered
receipient to generate eway bill, ofcource if the consignment value exceed Rs.
50000/-.

Where the goods to be transported are supplied through an
e-commerce operator (for example: amazon, flipkart etc), Part-A may also be
furnished by such e-commerce operator.

Who is to file Part-B: As stated above
also, Part B only contains information with regard to vehicle number.

In case movement is caused by own conveyance or a hired
conveyance, it is the person causing the movement has to file Part-B

In case of movement by rail or by air or vessel Part
-B has to be mandatorily filed by the registered person and along with it the
serial number and date of Railway Receipt or the Air consignment note or Bill
of Lading are also required to mentioned in the Part-A.

If the goods are handed over to a transporter for
transportation by Road Part-B will be filed by the transporter.

The unique feature of Eway bill is that Part B of eway bill can be
updated in the following circumstances:

1. where the goods are transferred from one
conveyance to another, in such case Part-B will be mandatorily updated with new
vehicle number before such transfer and further movement of goods.

For
example:If the vehicle breaks down when the goods are
being carried with EWB, then the transporter can cause to repair the vehicle
and continue the journey. If he is going to change the vehicle, then he has to
enter the new vehicle details for that EWB on the web-site using ‘Update
vehicle number’ option and continue the journey with new vehicle.

Part-B can be updated as many times as it Is required but
should be done within validity period. It has also been further provided in 2nd proviso
to Rule 138(9) that the unique number generated by filing Part-A shall be valid
for 72 hours for updation of Part-B.

2. There may be instances that transporter assign
the consignment to other transporter after booking from the supplier or recipient.
In such situation Rule 138(5A) provides that the transporter may assign the
e-way bill number to another registered or enrolled transporter for updating
the information in Part-B. It is worth noting here that whenever Part-A is
filed by the registered person and he has to mention the transporter’s GSTIN or
enrollment id in Part-A, if the goods are handed over to transporter.

However,
once the details of the conveyance are updated by the transporter in part-B
then supplier or recipient who had furnished Part-A will not be allowed to
assign the eway bill number to another transporter.

Validity of E-way Bill: E-way Bill’s validity
has been prescribed under Rule 138 in terms of distance involved in the
movement of goods. It as follows:

S.No.

Distance

Validity
Period

1

Upto
100 km

1
day

2

For
every 100 km. or part thereof thereafter

One
additional day:

It should be noted here that the period of validity shall be
counted from the time at which the e-way bill has been generated and each day
shall be counted as twenty four hours.

Rule 138(10) further provides that where, under circumstances of
an exceptional nature, the goods cannot be transported within the validity
period of the e-way bill, the transporter may generate another e-way bill after
updating the details in Part B of FORM GST EWB-01.

Cancellation of E-way Bill: Rule 138(9) provides
for cancellation of eway bill within 24 hours of generation of the e-way bill,
which can be done in the following circumstances:

-Where goods are not transported at all or

-are not transported as per the details furnished in the e-way
bill.

However, an e-way bill cannot be cancelled if it has been
verified in transit in accordance with the provisions of rule 138B.

Consolidated E-way bill: Where multiple
consignments are intended to be transported in one conveyance, the transporter
may indicate the serial number of e-way bills generated in respect of each such
consignment electronically on the common portal and a consolidated e-way bill
in FORM GST EWB-02 maybe generated by him on the said common portal prior to
the movement of goods.

Acceptence and rejection of e-way bills: The
eway bills generated shall be made available to a registered supplier if
generated by recipient or transporter and vice versa to the registered
recipient if generated by supplier or transporter. The same has to be accepted
or rejected by the supplier or recipient as the case may be, however if nothing
is done within seventy two hours then it shall be deemed that he has accepted
the said details.

When no e-way bill is required:Rule 138(14) provides with
a non-abstante clause the circumstances where no eway bill is required, these
are as follows:

(a) where the goods being transported are specified in Annexure;

(b) where the goods are being transported by a non-motorised
conveyance;

(c) where the goods are being transported from the port, airport,
air cargo complex and land customs station to an inland container depot or a
container freight station for clearance by Customs;

(d) in respect of movement of goods within such areas as are
notified under clause (d) of sub-rule (14) of rule 138 of the Goods and
Services Tax Rules of the concerned State;

(e) where the goods, other than de-oiled cake, being transported are
specified in the Schedule appended to notification No. 2/2017- Central tax
(Rate) dated the 28th June, as amended from time to time;(the schedule is
for tax free or nil rated goods)

(f) where the goods being transported are alcoholic liquor for
human consumption, petroleum crude, high speed diesel, motor spirit (commonly
known as petrol), natural gas or aviation turbine fuel; and

(g) where the goods being transported are treated as no supply
under Schedule III of the Act.

Documents and devices to be carried with a conveyance: Rule 138A
prescribes following documents which a person incharge of a conveyance must
carry:

(a) the invoice or bill of supply or delivery challan, as the case
may be; and

(b) a copy of the e-way bill or the e-way bill number, either
physically or mapped to a Radio Frequency Identification Device embedded on to
the conveyance in such manner as may be notified by the Commissioner.(there is
no such notification till the date when this article is written).

(c) Rule 138A(2) also provides facility of generation of Invoice
reference number by uploading on the e-way bill portal the tax invoice in form
GST INV-1, which will be valid for thirty days from the date of uploading and
in which case no physical invoice is required to be carried along with the
conveyance.

Verification of documents and conveyance: Rule
138B and Rule 138C empowers the proper officer (who is duly authorized to do so
either by Commissioner or an officer empowered in this regard)to intercept any
conveyance to verify the e-way bill or number thereof.

Physical verification of conveyance can be done only by the proper
officer who is duly athorised to do so, however physical verification of
conveyance can also be done by any officer other than proper officer after
obtaining necessary approval, if there is receipt of specific information on
evasion of tax.

Rule 138C also mandates the proper officer to record online
summary inspection report of every inspection of goods in transit in Part-A of
form GST EWB 03 and a final report within three days in Part-B of the said
form.

Once a physical verification of a conveyance is done in a state or
in any other State then further physical verification can be done unless a
specific information with regard to evasion of tax is made available
subsequently.

Certain important FAQs

Question: How to enter multiple modes of
transportation, i.e., road, rail, ship, air for the same e-way bill?

Answer:One e-way bill can go
through multiple modes of transportation before reaching the destination. As
per the mode of transportation, the EWB can be updated with new mode of
transportation by using ‘Update Vehicle Number’.

Let us assume the goods are moving from Cochin to Chandigarh
through road, ship, air and road again. First, the taxpayer generates the EWB
by entering first stage of movement (by road) from his place to ship yard and
enters the vehicle number. Next, he will submit the goods to ship yard and
update the mode of transportation as Ship and transport document number on the
e-way bill system. Next, after reaching Mumbai, the taxpayer or concerned
transporter updates movement as road from ship to airport with vehicle number.
Next the taxpayer or transporter updates, using ‘update vehicle number’ option,
the Airway Bill number. Again after reaching Delhi, he updates movement through
road with vehicle number. This way, the e-way bill will be updated with
multiple mode of transportation.

Question: How to handle the goods which moves through
multiple transshipment places?

Answer:Some of the consignments move
from one place to another place till they reach their destinations. Under this
circumstance, each time the consignment moves from one place to another, the
transporter needs to enter the vehicle details using ‘Update Vehicle Number’
option, when he starts moving the goods from that place or the transporter can
also generate ‘Consolidated EWB’ with the EWB of that consignment with other
EWBs and move to the next place. This has to be done till the consignment
reaches destination. But it should be within the validity period of EWB.

Question: How to
generate e-way bill for multiple invoices belonging to same consignor and
consignee?

Answer:If multiple invoices are
issued by the supplier to recipient, that is, for movement of goods of more
than one invoice of same consignor and consignee, multiple EWBs have to be
generated. That is, for each invoice, one EWB has to be generated, irrespective
of same or different consignors or consignees are involved. Multiple invoices
cannot be clubbed to generate one EWB. However after generating all these EWBs,
one Consolidated EWB can be prepared for transportation purpose, if they are
going in one vehicle.

Question: How to enter invoice having different states for
“Bill to” and “Ship to” places and what will be the tax rates?

Answer: If the addresses involved in 'Bill to' and 'Ship to' in a
invoice/bill belongs to one legal name/taxpayer as per GSTIN within the state,
then one e-way bill has to be generated. That is, if the 'Bill to' is principal
place of business and 'Ship to' is additional place of business of the GSTIN or
vice versa in a invoice/bill, then one e-way bill is sufficient for the
movement of goods.

If the addresses involved in 'Bill to' and 'Ship to' in a
invoice/bill belongs to different legal names/taxpayers, then two e-way bills
have to be generated. One e-way bill for first invoice, second e-way bill is
from 'Bill to' party to 'Ship to' party based on the invoice/bill of the 'Bill
to' party. This is required to complete the cycle of transactions and taxes
will change for inter-state transactions.

For example, A has issued invoice to B as 'Bill to'
with C as 'Ship to'. Legally, both B and C are different taxpayers. Now, A will
generate one e-way bill and B will issue invoice and generate one more e-way
bill. As goods are moving from A to C directly, the transporter will produce
both the invoices and e-way bills to show the shortcut movement of goods.

Question: How to generate e-way bill, if the goods of one
invoice is being moved in multiple vehicles simultaneously?

Answer: Where the goods are being transported in a semi knocked down
or completely knocked down condition the EWB shall be generated for each of
such vehicles based on the delivery challans issued for that portion of the
consignment and;

(a) the supplier shall issue the complete invoice before dispatch
of the first consignment;

(b) the supplier shall issue a delivery challan for each of the
subsequent consignments, giving reference of the invoice;

(c) each consignment shall be accompanied by copies of the
corresponding delivery challan along with a duly certified copy of the invoice;
and

(d) the original copy of the invoice shall be sent along with the
last consignment

Please note that multiple EWBs have to generate
under this circumstance. That is, the EWB has to be generated for each
consignment based on the delivery challan details along with the corresponding
vehicle number.

“semi knocked-down”
is used to describe a product that is exported in a set
of parts that have been
partly put together, and which are then all put together for sale to customers:

Companies have hundreds of crores of rupees in input tax credit but they may still need to pay the goods and services tax ( GST) for July and August in full, potentially disrupting working capital flows.

That’s because the relevant GSTR 3B form doesn’t provide any column for carry-forward of credit from the earlier regime of central excise duty, service tax and value added tax. Companies will thus be unable to adjust the tax paid against their liability. Experts said this does not seem to be the government’s intention and it must clarify this quickly as industry is counting on this adjustment and would now need funds to pay GST in full.
Companies such as those in auto sector have hundreds of crores of rupees in such credit.

“This will cause substantial cash flow problems for the taxpayers unless the assessees are allowed to utilise transitional credit on a provisional basis,”

The GST Council, the apex decision-making body for the new tax regime, had approved a liberal transition framework to ensure smooth sailing when making the switch.

Any entity can claim credit of service tax or VAT paid in the previous regime against GST liability. If it does not have proof of payment of tax, it can take advantage of the deemed benefit norm. The key benefit of GST is that there is no cascading of tax through seamless availability of input tax credit.

Companies have to file form GSTR 3B, a summarised return, for July by August 20. That for August has to be filed by September 20.

The format of this return includes a summary of details of outward supplies, inward supplies liable to reverse charges and input tax credit eligible on various procurements made during the month. But the form does not provide space for carry-forward of credit from the earlier regime. This essentially implies that the GST liability for the months of July and August will have to be settled in cash.
CALL FOR CLARITY

There is a mechanism for claiming credit from the previous regime but that has not been integrated with the GST filing process.

This transitional credit will be available only after filing of GSTR TRAN-1 on the GSTN common portal.

Even if a taxpayer files TRAN-1 prior to August 20 (that is, prior to filing GSTR 3B for July), the credits would not be allowed to be migrated in GST as there is no specific table for disclosing opening credit in GSTR 3B. TRAN-1 and TRAN-2 are the forms for transition of input tax credit while GSTR 3B is the form in which actual GST payable is filed. To be sure, input tax credit can be availed of after September in all instances.

Tax experts are seeking a clarification or a change in the form.

“It cannot be the intention of the government to deny the benefit of input credit, “It could lead to huge cashflow issues for industry, running into thousands of crores. A clarification or amendment in Form(GSTR) 3B is needed urgently.”

All Principal Commissioners/ Commissioners of Customs and Central Excise/GST.

Sir /Madam,

Subject: Leviability of Integrated Goods and Services Tax (IGST) on High Sea Sales ofimported goods and point of collection thereof-reg.

Reference has been received in the Board regarding clarity on Leviability of Integrated Goods and Services Tax (IGST) on High Sea Sales of imported goods.

2. The issue has been examined in the Board. 'High Sea Sales' is a common trade practicewhereby the original importer sells the goods to a third person before the goods are entered forcustoms clearance. After the High sea sale of the goods, the Customs declarations i.e. Bill of Entryetc is filed by the person who buys the goods from the original importer during the said sale. Inthe past, CBEC has issued various instructions regarding high sea sales appropriating the contractprice paid by the last high sea sales buyer into the Customs valuation [Circular No. 32/2004-Cus.,dated 11-5-2004 refers].

3. As mentioned earlier, all inter-state transactions are subject to IGST. High sea sales ofimported goods are akin to inter-state transactions. Owing to this, it was presented to the Boardas to whether the high sea sales of imported goods would be chargeable to IGST twice i.e. at thetime of Customs clearance under sub-section (7) of section 3 of Customs Tariff Act, 1975 and alsoseparately under Section 5 of The Integrated Goods and Services Tax Act, 2017.

4. GST council has deliberated the levy of Integrated Goods and Services Tax on high sea
sales in the case of imported goods. The council has decided that IGST on high sea sale (s)
transactions of imported goods, whether one or multiple, shall be levied and collected only at the
time of importation i.e. when the import declarations are filed before the Customs authorities for
the customs clearance purposes for the first time. Further, value addition accruing in each such
high sea sale shall form part of the value on which IGST is collected at the time of clearance.

5. The above decision of the GST council is already envisioned in the provisions of sub-
section (12) of section 3 of Customs Tariff Act, 1975 inasmuch as in respect of imported goods,
all duties, taxes, cessess etc shall be collected at the time of importation i.e. when the import
declarations are filed before the customs authorities for the customs clearance purposes. The
importer (last buyer in the chain) would be required to furnish the entire chain of documents, such
as original Invoice, high-seas-sales-contract, details of service charges/commission paid etc, to
establish a link between the first contracted price of the goods and the last transaction. In case of
a doubt regarding the truth or accuracy of the declared value, the department may reject the
declared transaction value and determination the price of the imported goods as provided in the Customs Valuation rules.

6. Field formations are requested to decide the cases of high sea sales of imported goods
accordingly. Difficulties, in the implementation of this circular may be brought to the knowledge
of the Board.

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